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November 2011 – Update

‘Tis the season to be jolly…’ or is it?

The festive season traditionally brings about a spike in industrial relations matters with inappropriate conduct at Christmas functions (both office and clients) due to managers being unaware that the business can be liable for the conduct of staff outside of business hours and away from business premises.

In Brown v Aristocrat, when an intoxicated employee exited the Christmas party and urinated over the balcony on diners in a restaurant below, his employment was terminated. The Commission found that ‘there is a sufficient proximity to the work function such as to provide a necessary connection with the employment relationship’ however the company could successfully defend the unfair dismissal application as they had taken “reasonable and appropriate steps” by informing employees of expectations regarding responsible drinking and behaviour, reinforced this in the invitation and ensured only invited employees attended the party.

However, in Streeter v Telstra Corporation, whilst Telstra was successful in defending their decision to terminate Ms Streeter after she was found to have engaged in sexual intercourse, nudity and rowdy behaviour in a hotel room (booked and paid for privately) after a work function, it took a costly hearing and appeal process to do so. Telstra failed to set the expectations for the retail store function and as a result, the celebration got out of hand, reputations were damaged and employees scarred by the events.

To ensure your business is not exposed to a festive season incident, below are tips to mitigate the risks associated with social functions:

1. Set the behavioural expectations for employees (and partners if invited) before the event by drafting and distributing a friendly email or flyer;

2. Make the function ‘invite only’ and ensure it is not ‘crashed’ by others;

3. Define a start and finish time for the function;

4. Serve non-alcoholic and low-alcoholic beverages;

5. Do not serve spirits, regardless of who pays;

6. Ensure there is ample food for everyone;

7. If there is an ‘informal’ after-party, ensure that it is not endorsed or attended by management;

8. Consider having a daytime family-friendly event in lieu of a night-time party;

9. Be aware of any client functions your staff attend and set clear expectations of conduct; and

10. If there is an allegation of an incident at any function, thoroughly investigate it without delay.

12% Superannuation bill in Parliament

Last week the Federal Government introduced its promised new legislation into Parliament to increase compulsory employer superannuation payments from 9% to 12%. If passed, it will come into effect on 1 July 2013 and gradually increase super payments to 12% by July 2020. We will keep you posted on updates of this Bill as they become available.

Contact Nicole or John at Industrial Relations Law for more information on these matters.